ACTA: History repeating itself?

So the European Parliament has voted 663-13 against the Anti-Counterfeiting Trade Agreement (ACTA) (h/t BoingBoing). Could this be a turning point in the negotiations? The whole situation does seem to have some similarities to the French reticence that sunk the Multilateral Agreement on Investment over a decade ago. It’s interesting to note, however, that rather than calling for the cessation of negotiations, the European Parliament is calling for the agreement to respect existing EU law. Which means that we’ll probably end up with an ACTA, though (if the vote is effective in putting pressure on EU negotiators) one that’s more modest and balanced than what U.S.-based interests have been hoping for.

Here’s a question I’ve been wondering about: if, as I’ve suggested previously, powerful interests will have to be served regardless of what’s in the final text, will ACTA’s excessive secrecy have helped or hindered the interests of those countries and interests seeking much stronger copyright laws and enforcement?

On the upside, if you can pull it off, you have an agreement that proponents can use to legitimize changes in domestic law and regulations. And even if you can’t keep it completely secret, the process may put opponents at a disadvantage when it comes to negotiation and implementation.

On the downside, excessive secrecy allows opponents to question its legitimacy while letting people’s imaginations run wild about what could be in the treaty and whip up anti-ACTA support. One would imagine that this would be a not-insignificant political problem, even in the case of executive agreements (like ACTA) that do not require parliamentary approval and some of whose requirements may be implemented via regulation, not legislation. And, of course, there’s the whole democratic-governments-should-act-transparently-in-the-interests-of-their-voters thing and the nobody-likes-to-think-they’re-being-played thing.

Just some thoughts. It’ll be interesting to see how this all plays out. To say the least.

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Posted in ACTA, Anti-Counterfeiting Trade Agreement | Comments Off on ACTA: History repeating itself?

ACTA: All Global Treaties are Local

A nice reminder, courtesy of Michael Geist , that the battle over the Anti-Counterfeiting Trade Agreement (ACTA) is going to get messier the more that groups directly affected by but excluded from the talks are heard and, most importantly, are listened to.

From Mexico: President of the Senate Commission on Science and Technology, Senator Francisco Javier Castellón Fonseca, is calling for increased transparency in ACTA talks in order to understand their potential impact on digital copyright issues generally and Internet Service Providers specifically.

This is important for three reasons.

1. Politically, Senator Castellón Fonseca, represents the left-leaning PRD, which can be expected to champion individuals’ user rights. The PRD has 127 out of 500 seats in the Chamber of Deputies and 26 out of 129 Senate seats. In Mexico currently there are no organized consumer or users’ groups dealing with copyright issues; with a political champion, this could change, making ACTA implementation (to say nothing of other copyright reforms) more difficult.

2. Mexico may also be starting to consider the economic and technological effects of copyright, rather than simply its cultural aspects. The same Senator made remarks to this effect in 2008.

3. The Senate Commission on Science and Technology is responsible for ISP-related issues, and ISPs have a lot of clout in Mexican politics: Telmex has a virtual monopoly on Mexican Internet access and is owned by Carlos Slim, the third-richest man in the world, according to Forbes.

Simply put, so far as Internet access issues are concerned, all roads to Mexican copyright reform and ACTA implementation run through Telmex. That Mexican ISPs and the content businesses and groups have been trying unsuccessfully for a couple of years now to come to an agreement on ISP liability (Mexico currently has no laws dealing with this issue) tells me that Telmex’s interests do not align directly with those of the copyright owners that have been behind the treaty.

In a sense, it might not matter much for Mexico what the ACTA requires: if it doesn’t make Telmex happy, then implementation will be a long, long time coming. Negotiating a treaty in secret may help get something signed, but if powerful interests are not listened to, they will, in the end, make themselves heard.

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News flash: Canadian broadband great, says paper owned by ISP

I thought there was something off in the story in the Globe and Mail (a division of CTV Globemedia, owned in part by the same company that owns Sympatico) by Leonard Waverman and Kalyan Dasgupta about how Canadian broadband access isn’t as terrible relative to the rest of the world as OECD data and a recent U.S. Federal Communications Commission report makes it seem. (Yochai Benkler, the report’s author, rebutted some of the criticisms four months ago.)

I’ve been looking at the same data they criticize. Yesterday, I finished a rough draft of my case study on the Mexican implementation of the WIPO Internet treaties. When I asked Mexican copyright experts (lawyers, government, industry folks) why the treaties had not yet been implemented fully, everyone pointed to low Internet penetration rates as being one of the main causes. Unauthorized downloads aren’t much of a problem when people aren’t online. It’s only been in the last couple of years, as Mexican Internet penetration rates have started to rise that groups like the International Intellectual Property Association (IIPA), a U.S.-based lobby group, have really begun to push for measures to combat unauthorized downloading (compare the language on “Internet piracy” in their 2009 and 2010 Mexico-related Special 301 filings with those of previous years).
Anyway. One of their first criticisms is that the data conflate household and business access, and when you include business broadband access, Canada fares much better, since proportionately more Canadians are employed by big businesses than elsewhere in the world.

I was pretty sure that the data I looked at didn’t do that. And, unfortunately for their argument, the OECD data actually don’t make such an elementary mistake. As Benkler and an eagle-eyed Globe commentator points out that the OECD actually does report a broadband access rate by household. And by that measure, as our intrepid commentator (Atreya) remarks, Canada is 7th and the U.S. 17th out of the 30 OECD countries (Mexico is in 29th place, just ahead of Turkey).

Last time I checked, ranking 7th in anything isn’t enough to let you brag that you’re leading the pack. Atreya also makes some good points about measuring download speeds, which I’ll leave to the experts to quibble about.

I’d add only two things.

1. Conflict of interest. Given that the Globe and Mail is owned in part by Bell Canada Enterprises (BCE), which also controls Bell Canada, which runs Sympatico, one of Canada’s two main Internet Service Providers, it’s shocking that this story ran without any kind of warning about the Globe’s conflict of interest. Absolutely shameful.
2. Where are the links? Since I’ve started writing this blog, I’ve been noticing how Canadian newspapers like the Ottawa Citizen, the Globe and Mail and the Toronto Star often don’t link to the reports and articles they cite. Even with columnists and reporters I trust, I want to verify what they’re talking about for myself. We’re far past the time when a newspaper could confer authority and legitimacy over everything in its pages by its name alone.
And when someone like me is able to find, in five minutes, a link to a four-month-old posting in which the author of the offending report rebuts the allegations put forward in this article (h/t Geist) and yet is not mentioned at all by the authors, it does nothing for the paper’s credibility. And, no, calling it an opinion piece doesn’t exempt the paper, editors and publishers from their journalistic responsibilities.
Note to publishers: these days, not linking to the documents you’re writing about is like writing an academic paper without providing footnotes.
It’s almost as if these companies don’t want to survive the transition to digitally delivered news.

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Posted in Broadband access, conflicts of interest, Mexican copyright | 1 Comment

Canada and the politics of ACTA implementation

Nice post by Sara Bannerman about the potential effect of the Anti-Counterfeiting Trade Agreement (ACTA) on Canadian copyright reform. I think she has the issue mostly surrounded, and that possibility number three – a treaty will simply introduce another element into the basics of the current copyright debate – is most likely. As she writes, pro-ACTA groups will say Canada has an obligation to implement the treaty; anti-ACTA groups will say we don’t and that it’s illegitimate (an argument that grows stronger every day the text stays secret).

Sounds a bit like a continuation of the Canadian debate over the WIPO Internet treaties, doesn’t it?

But the really big question is, will the Canadian government implement the ACTA (assuming it signs on)? While my guess is as good as the next guy’s (depending on who the next guy is, I guess), it’s worth remembering that the fact that Canada signs a treaty doesn’t really mean that much in terms of whether or not Canada will actually change its laws. As Howard Knopf has written several times, and as Sara also notes, signing a treaty does not require its implementation. If it did, the U.S. and Canada would have been implementing their Kyoto-mandated greenhouse gas reductions for about a decade now.

Directly related to this point, Queen’s University International Relations professor Kim Nossal was in Mexico City this week for a lecture that dealt extensively with the myth of Canadian multilateralism. His point was a simple one: Canada, like pretty much every other country, follows its own conception of the national interest. Nossal remarked that in cases like Kyoto and the Law of the Sea, Canadian governments of all stripes have demonstrated the willingness to act unilaterally and to ignore treaty obligations when they thought that the costs of compliance were too high.

The same is true of the WIPO Internet treaties and will be true of ACTA. Any government – Conservative or Liberal or NDP – will consider the potential effects of the treaty on its political fortunes and (relatedly) on the economy. It will also consider its effects on its international relations. While each party may come to different conclusions about how exactly ACTA implementation will affect each of these factors, domestic politics and international relations will determine whether and how the treaties will get implemented. Furthermore, my hunch is that it is unlikely that the treaty in and of itself will alter anyone’s conception of what is in their national or specific interest, if only because the legitimacy of the treaties can be so easily called into question by asking why they are being negotiated in secret outside the World Intellectual Property Organization, the World Trade Organization, UNESCO or any other copyright-related international institution.

In this sense, ACTA will do little but add another rhetorical tool into the arsenal of proponents and opponents.

To put it bluntly, it’s all about pain and reward. Treaty opponents will seek to convince the government that implementing the treaties will hurt the government, politically or economically, and/or that non-implementation will help the government. That’s what the Fair Copyright for Canada and the Canadians Against Proroguing Parliament Facebook groups are all about.

Treaty proponents will try the opposite: arguing that implementation of the treaties will bring political and economic rewards, and that non-implementation will carry a cost.

Signing ACTA will only be the beginning (or continuation) of the debate. It all comes down to the politics, and it’s way too early to guess how any of this will fall out. But arguments that Canada has an obligation of any kind (moral or otherwise) to implement a treaty it has signed should be seen for what they are: rhetorical exercises masking self-interest.

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Understanding Facebook activism in two easy steps

After reading Michael Valpy’s confusing article on the political effectiveness of Facebook in this morning’s Globe and Mail, I have to wonder if reporters will ever get their minds around exactly what Facebook is. Judging from Valpy’s interview with a pollster about how Canadians feel about Facebook’s effect on politics – not, note, what Facebook activism has actually accomplished – I fear our intrepid reporters will be misunderstanding Facebook for a long time to come.

Valpy and his source, pollster Nick Nanos, essentially rehash that old chestnut: what does it mean when a bunch of people join a Facebook group? This is the wrong question and misses almost all that makes Facebook and social-networking sites important. I’ll try to put this in more traditional terms.

Facebook is the telephone. It is a way for people to share opinions and to organize online and offline activity. If you remember that Facebook is only a tool, and a tool is only as effective as the people using it, the whole idea of social-networking platforms becomes much easier to understand. It also demonstrates the silliness of asking, as Nick Nanos does, whether Facebook can replace political parties. This is as absurd as asking if a fax machine (remember them?) could replace the Conservative Party of Canada. Facebook is a tool for communicating and lobbying, not governing.

Facebook groups are mailing lists. The power of mailing lists isn’t necessarily in how many people are on that list, but in the amount of money they are able to raise, the number of people they are able to deliver at election time, the number of protestors they’re able to mobilize for a rally. Again, their effectiveness will depend on the people using the lists.

Facebook and other social-networking platforms make it much, much easier for individuals to organize. Before Facebook, getting over 25,000 people out to protest, on a single day, across the second-largest country in the world, with only a couple of weeks of organizing, would have been a massively expensive and complex logistical undertaking (to those who downplay this remarkable accomplishment: try doing it yourself sometime). Most interestingly, Facebook makes it easy for this to happen with little central organization, beyond the original Facebook page.

While its decentralized, inexpensive nature make Facebook activism potentially much more effective for grassroots groups than more centralized forms of political activism, at the end of the day its effectiveness depends on the people involved. It’s still up to the people doing the organizing to make protests work.

So what do the numbers mean? Like everyone else, I don’t know how worried the Conservatives should be that over 225,000 people have joined the Canadians Against Proroguing Parliament Facebook group (I’d be a bit worried). I do know that, via Facebook, Canadians across the country were able to get 25,000 people into the streets to voice their displeasure with Stephen Harper’s suspension of Parliament. I do know that since December, Conservative support has dropped dramatically into a statistical dead heat with a Liberal party that could most charitably be described as “adrift.”

I also know that two years ago, tens of thousands of Canadians joined the Fair Copyright for Canada Facebook group, which they used to organize protests, including visits to MP’s offices, letter writing campaigns, and even showed up at the Industry minister’s riding’s Christmas party to call for public consultations to address copyright reform. I also know that these protests were at least partly responsible for delaying the introduction of a copyright bill long enough that it was killed when the Fall 2008 election was called. It also seems clear that the Summer 2009 public consultations into copyright reform (for which the Conservative government deserves praise) were at least partly the result of this public pressure.

From these two examples, it seems clear that joining a Facebook group does, in some cases, lead to political activism. To the extent that it facilitates this activism and makes people aware of the issues, it can have, as Nanos says, “political heft in (sic.) the ballot box.”

Look: Facebook is still relatively new. We need more research into the conditions under which joining a Facebook group leads to political activism (hmmmm, that would make a nice postdoc subject…). But it does happen. And I’m sure that some enterprising political aide or grad student can come up with a nifty formula that tells us how many voters are represented by each Facebook joiner. It’s not like there are no data on the subject: Facebook has been around for five years, and in Canada we have at least two, and probably more, examples of effective Facebook-based political campaigns.

Understanding the limits and possibilities of Facebook activism requires moving beyond a simplistic view of Facebook as a pseudo-pollster and toward a more nuanced understanding of how Facebook, as a communications tool, actually works.

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